Congressmen want answers from Aaron Swartz prosecutors

Why did prosecutors seek 50 years in prison and $1 million in fines?

Two US representatives have asked federal prosecutors to answer a series of questions about the prosecution of Aaron Swartz. In a letter yesterday to US Attorney General Eric Holder, Rep. Darrell Issa (R-CA) and Elijah Cummings (D-MD) ask why prosecutors sought up to 50 years in prison and $1 million in fines for Swartz, who committed suicide prior to his trial.

Issa and Cummings, chairman and ranking member of the House Oversight and Government Reform Committee, requested a briefing by Feb. 4 to answer the following questions:

What factors influenced the decision to prosecute Mr. Swartz for the crimes alleged in the indictment, including the decisions regarding what crimes to charge and the filing of the superseding indictment?

Was Mr. Swartz's opposition to SOPA or his association with any advocacy groups considered?

What specific plea offers were made to Mr. Swartz, and what factors influenced the decisions by prosecutors regarding plea offers made to Mr. Swartz?

How did the criminal charges, penalties sought, and plea offers in this case compare to those of other cases that have been prosecuted or considered for prosecution under the Computer Fraud and Abuse Act?

Did the federal investigation of Mr. Swartz reveal evidence that he had committed other hacking violations?

Swartz was arrested in 2011 for downloading 4.8 million documents from the academic archive JSTOR. With many calling his prosecution excessive, Rep. Zoe Lofgren (D-CA) introduced "Aaron's Law" to limit the reach of the Computer Fraud and Abuse Act.

The letter from Issa and Cummings (PDF courtesy of CNET) notes that "Many questions have been raised about the appropriate level of punishment sought by prosecutors for Mr. Swartz's alleged offenses, and how the Computer Fraud and Abuse Act, cited in 11 of 13 counts against Mr. Swartz, should apply under similar circumstances."

Sen. John Cornyn (R-TX) also asked Holder for answers about the prosecution a couple weeks ago. Carmen Ortiz, the Massachusetts US attorney whose office was prosecuting Aaron Swartz, recently defended her actions in the case, noting that a plea bargain would have resulted in six months of prison time.

Promoted Comments

A plea bargin for 6 months. Or a trial asking for 50 years. So apparently if you don't deal with the prosecutor, they can seek 100 times as much punishment, and thats "reasonable" and not excessive.

If 6 months was a reasonable plea bargin, then 50 years was exceedingly excessive and using it as a blunt instrament to scare someone into a plea bargin so they won't use their constitutional rights to be heard in trial makes the entire justice system a farce.

Plea bargins are good. But using massive penaltives as a blunt instrament to keep people out of court is just wrong. Everyone has a right to a trial. The prosecutors shouldn't be allowed to use a Carrot and Thermonuclear War approach.

"Why did prosecutors seek 50 years in prison and $1 million in fines?"

Because that's what they always do? It isn't like this case is unique. They will seek the absolute maximum they are allowed to under the law, not because they think it is what the person deserves, but because it gives them more leverage to force a plea deal.

If congress doesn't like that, they should fix it. They're the ones making the laws that allow prosecutors to seek such absurd penalties.

Ortiz just doesn't seem to get that even six months prison time and a felony record is far to harsh a punishment for a crime that harmed no one, and didn't even cost anyone anything other than the taxpayers having to pay for such a ridiculous prosecution. I can see a misdemeanor trespassing charge or some such, but beyond that this entire thing is all about adding another win and making an example, neither of which should be the driving motivation for a prosecutor.

I have a slight confusion about one piece of the story. I recall reading in some places that it was 50 years, other places say 35.

As far as the plea bargin, I have to wonder how it was offered. Did they push heavily for 50/35 years and then offer up 6 months as the attractive option they actually wanted to take?

I can appreciate the need for strong arm tactics to get criminals to accept a relatively attractive plea bargin, but if you are going to wield that kind of authority around, you really should be accountable to someone/thing.

A plea bargin for 6 months. Or a trial asking for 50 years. So apparently if you don't deal with the prosecutor, they can seek 100 times as much punishment, and thats "reasonable" and not excessive.

If 6 months was a reasonable plea bargin, then 50 years was exceedingly excessive and using it as a blunt instrament to scare someone into a plea bargin so they won't use their constitutional rights to be heard in trial makes the entire justice system a farce.

Plea bargins are good. But using massive penaltives as a blunt instrament to keep people out of court is just wrong. Everyone has a right to a trial. The prosecutors shouldn't be allowed to use a Carrot and Thermonuclear War approach.

"Why did prosecutors seek 50 years in prison and $1 million in fines?"

Because that's what they always do? It isn't like this case is unique. They will seek the absolute maximum they are allowed to under the law, not because they think it is what the person deserves, but because it gives them more leverage to force a plea deal.

If congress doesn't like that, they should fix it. They're the ones making the laws that allow prosecutors to seek such absurd penalties.

It is my sincere hope that a review of the tactics used in this case will lead to reform, but you'll forgive me if I'm not optimistic.The Swartz case is not unique in that the prosecutor placed the potential for harsh penalty on the table as the alternative to a plea bargain. It is also not the first time that questions have been raised about what punishment is appropriate in a crime where the damage done is minor to non-existent. Hopefully the response to the Committee's questions will lead to a serious discussion and not a further attempt to politicize a family's tragedy to score cheap points.

Ortiz just doesn't seem to get that even six months prison time and a felony record is far to harsh a punishment for a crime that harmed no one, and didn't even cost anyone anything other than the taxpayers having to pay for such a ridiculous prosecution. I can see a misdemeanor trespassing charge or some such, but beyond that this entire thing is all about adding another win and making an example, neither of which should be the driving motivation for a prosecutor.

Totally agreed.

I think it would help a lot if everyone involved in the justice system had to each spend a month anonymously serving an internship style sentence in a randomly selected prison before they get to start sending others to these places.

Even a month might not be a lot, maybe have an ongoing education type of system where these people anonymously serve a month every few years to refresh their memory.

Of course it would have to be structured correctly so they got the full taste of what true prison life is like for an actual inmate, and not someone being protected by the guards and administration.

Holder and Issa, chairman and ranking member of the House Oversight and Government Reform Committee, requested a briefing by Feb. 4 to answer the following questions:

Nitpicking but shouldn't this read, "Issa and Cummings, chairman and ranking member of the House Oversight and Government Reform Committee, requested a briefing by Feb. 4 to answer the following questions:?"

The feigned outrage is adorable. This is common place for cases like this. Many of these scum are lawyers and know this. I guess they will take their political brownie points where they can get them.

Sadly, this is true. Prosecutors are political appointments. They essentially get paid by the number of drug convictions they can make stick. Aaron Swartz was an easy target. The prosecutors got to go home early, and tell their bosses in the state legislature that they're "all over" this new-fangled cybercrime thing. Meanwhile, high-financiers escape prosecution, because they have so much draw in politics. It's ugly.

Accept the plea bargain and spend six months in jail, or go to trial and spend up to 50 years behind bars. What kind of choice is that? There should have been much more sensible sentencing for both the plea bargain and going to trial instead of, as someone else said, the carrot and thermonuclear war approach.

Aaron Swartz and a few others took their own lives rather than face going to trial, losing and spending half their lives behind bars for alleged offences which shouldn't have warranted such long sentences in the first place. It's a terrible choice no one should have to make.

Two US representatives have asked federal prosecutors to answer a series of questions about the prosecution of Aaron Swartz. In a letter to US Attorney General Eric Holder, Rep. Darrell Issa (R-CA) and Elijah Cummings (D-MD) ask why prosecutors sought up to 50 years in prison and $1 million in fines for Swartz, who committed suicide prior to his trial.

Sad that this level of misinformation has reached Congress.

It's from their own press release. You can't trumpet bringing charges against a guy with a maximum of 50 years and then later, when it looks bad, cry that you wouldn't have recommended that much time.

The feigned outrage is adorable. This is common place for cases like this. Many of these scum are lawyers and know this. I guess they will take their political brownie points where they can get them.

Sadly, this is true. Prosecutors are political appointments. They essentially get paid by the number of drug convictions they can make stick. Aaron Swartz was an easy target. The prosecutors got to go home early, and tell their bosses in the state legislature that they're "all over" this new-fangled cybercrime thing. Meanwhile, high-financiers escape prosecution, because they have so much draw in politics. It's ugly.

I would just like to point out, prosecutors are absolutely NOT political appointments. The Attorney General, yes, the individual AUSA's are not. They are hired through the DOJ just like any employee. I'm not defending the prosecutors, I typically think they are unethical in their pursuit of convictions, often throwing the rights of the accused to the wind to further their career. But I digress... just wanted to point out that they are hired just like every other employee. Also, the federal government has very strict rules regarding nepotism and working in the same federal district as a family member.

"Why did prosecutors seek 50 years in prison and $1 million in fines?"

Because that's what they always do? It isn't like this case is unique. They will seek the absolute maximum they are allowed to under the law, not because they think it is what the person deserves, but because it gives them more leverage to force a plea deal.

If congress doesn't like that, they should fix it. They're the ones making the laws that allow prosecutors to seek such absurd penalties.

"Why did prosecutors seek 50 years in prison and $1 million in fines?"

Because that's what they always do? It isn't like this case is unique. They will seek the absolute maximum they are allowed to under the law, not because they think it is what the person deserves, but because it gives them more leverage to force a plea deal.

If congress doesn't like that, they should fix it. They're the ones making the laws that allow prosecutors to seek such absurd penalties.

Just because it's common practice, doesn't mean it's good practice. Just because the law covers a wide variety of situations, some of which might justify high penalties, doesn't mean that prosecutors should be using the threat of the maximum sentence to coerce someone into a plea bargain.

The prosecution should seek a penalty that would be appropriate if the defendant is guilty, and then (possibly) offer a plea bargain for something less than that. The principle should be that you can get a lighter sentence than you might really deserve if you're willing to admit guilt and avoid the cost and uncertainty of a trial. It should not be about threats of massively excessive punishment coercing someone to give up their right to a trial and take a deal that is still somewhat excessive for the crime they allegedly committed.

I think it would help a lot if everyone involved in the justice system had to each spend a month anonymously serving an internship style sentence in a randomly selected prison before they get to start sending others to these places.

Even a month might not be a lot, maybe have an ongoing education type of system where these people anonymously serve a month every few years to refresh their memory.

Of course it would have to be structured correctly so they got the full taste of what true prison life is like for an actual inmate, and not someone being protected by the guards and administration.

This is quite genius! It must be suppressed before it catches on! Quick, everyone vote it down!

The feigned outrage is adorable. This is common place for cases like this. Many of these scum are lawyers and know this. I guess they will take their political brownie points where they can get them.

Sadly, this is true. Prosecutors are political appointments. They essentially get paid by the number of drug convictions they can make stick. Aaron Swartz was an easy target. The prosecutors got to go home early, and tell their bosses in the state legislature that they're "all over" this new-fangled cybercrime thing. Meanwhile, high-financiers escape prosecution, because they have so much draw in politics. It's ugly.

I would just like to point out, prosecutors are absolutely NOT political appointments. The Attorney General, yes, the individual AUSA's are not. snip.

The feigned outrage is adorable. This is common place for cases like this. Many of these scum are lawyers and know this. I guess they will take their political brownie points where they can get them.

Sadly, this is true. Prosecutors are political appointments. They essentially get paid by the number of drug convictions they can make stick. Aaron Swartz was an easy target. The prosecutors got to go home early, and tell their bosses in the state legislature that they're "all over" this new-fangled cybercrime thing. Meanwhile, high-financiers escape prosecution, because they have so much draw in politics. It's ugly.

I would just like to point out, prosecutors are absolutely NOT political appointments. The Attorney General, yes, the individual AUSA's are not. They are hired through the DOJ just like any employee. I'm not defending the prosecutors, I typically think they are unethical in their pursuit of convictions, often throwing the rights of the accused to the wind to further their career. But I digress... just wanted to point out that they are hired just like every other employee. Also, the federal government has very strict rules regarding nepotism and working in the same federal district as a family member.

Actually while the state prosecutors may not all be political appointments they follow the orders of their politically appointed boss.

Yeah, they are all very concerned now that they have kicked a hornet's nest. They aren't concerned enough to actually look at the law or ask prosecutors why people are being prosecuted for "hacking" AT&T iPads without ever, you know, hacking anything.

Ortiz just doesn't seem to get that even six months prison time and a felony record is far to harsh a punishment for a crime that harmed no one, and didn't even cost anyone anything other than the taxpayers having to pay for such a ridiculous prosecution. I can see a misdemeanor trespassing charge or some such, but beyond that this entire thing is all about adding another win and making an example, neither of which should be the driving motivation for a prosecutor.

And you don't get that the act of gaining unauthorized access to a computer or network is a federal crime for good reason. Something Aaron was fully aware of and did anyway. Not all felonies are crimes where someone is hurt. Anyway Aaron chose to violate federal law then when he was caught, I'm sure he thought he was too good to get caught else he wouldn't have done something this stupid, he found he couldn't handle the fact that he was going to spend SOME time in federal prison and be an felon. Fact is prosecutors were going to shoot for 7 years but it didn't sound like they expected to get anywhere near that. the press plid up the maximum time possible to sensationalize the story. Fact is the only way he would have gotten the max is if he was found to be quite a bit more than just some kid seeking to violate copyright. the feds do not get involved in copyright infringement. If he hadn't gained unauthorized access to MIT's system his wouldn't have been a federal case and instead possibly a local trespassing/breaking and entering charge and a civil matter for the copyright violation.

Whatever your opinions are on the sanctity of copyright. copyright law and presumptions of guilt, this is isn't really about that.

This is about two other things:1. The scope of the "Computer Fraud and Abuse Act" is poorly worded and allows prosecutors to wield an unreasonably large stick in trying to manipulate an accused to accept a plea bargain (Sadly, this is true of many the "new technology" laws on the books).

Aaron Swartz may have functionally only had to serve 6 months if he admitted his guilt. But what if he felt his actions were a valid form of protest and that the presumption of guilt was unlawful. He could fight it and face what is a harsher penalty that one faced by violent criminal. Instead all potentially harmed parties in this case decided there was no point of pursuing the case. What part of the intimidation that he faced from the prosecuting team drove him to his desperate act?

2. The power that prosecutors wield in manipulating suspects to accept (presumed) guilt rather than go to court and receive trial. This case has exposed this practice as one that has short circuited our justice system and created a system to "give him the works until he confesses".

Two US representatives have asked federal prosecutors to answer a series of questions about the prosecution of Aaron Swartz. In a letter to US Attorney General Eric Holder, Rep. Darrell Issa (R-CA) and Elijah Cummings (D-MD) ask why prosecutors sought up to 50 years in prison and $1 million in fines for Swartz, who committed suicide prior to his trial.

Sad that this level of misinformation has reached Congress.

The only one selling this as "misinformation" are shills and hacks. Either he took the plea bargain of guaranteed jail or he face a jury trial with a possible result of *gasp* up to 50 years and a million in fines.

I have a slight confusion about one piece of the story. I recall reading in some places that it was 50 years, other places say 35.

As far as the plea bargin, I have to wonder how it was offered. Did they push heavily for 50/35 years and then offer up 6 months as the attractive option they actually wanted to take?

I can appreciate the need for strong arm tactics to get criminals to accept a relatively attractive plea bargin, but if you are going to wield that kind of authority around, you really should be accountable to someone/thing.

This is ridiculous that this kind of sentence was even considered in the first place. 35 or 50, both are excessive and insane. Serial killers and rapists don't get as much. Carmen Ortiz or somebody needs to be held responsible for this.

The anger at the prosecutor is silly. Plea-bargaining is literally haggling and those up-in-arms about the original "offer" need to take it up with their legislators and not with the prosecutors office. The odds of him ultimately getting hit with the maximum penalty was non-existent and a plea-deal was all but inevitable. The maximum penalty is also there for good reason for the times when white collar crimes do in fact hurt people tremendously. The fact that he not only broke the law but then opted to end his own life instead of face the consequences of his actions doesn't make him a hero and neither does the prosecutor performing standard plea-negotiating within the bounds of the law make her a villain. Prosecutors have a duty to do their "best" and their job is to prove the person guilty. It is, in turn, the defense's job to prove the opposite. This is the foundation of how our justice system works. The primary issue here seems to be that there is no perfect justice system and whether punishment fits the crime seldom has mathematical answers.

This is ridiculous that this kind of sentence was even considered in the first place. 35 or 50, both are excessive and insane. Serial killers and rapists don't get as much. Carmen Ortiz or somebody needs to be held responsible for this.

What convicted serial killer has gotten less than 35 or 50 years? Also, isolated rape incidents seldom have definitive proof and convicted serial rapists certainly get the book thrown at them.

She is an Obama appointee.She is the first Latina and the first woman to represent Massachusetts as United States AttorneyShe is Latina of the Year, El Mundo NewspaperShe has won the Las Primeras Award for Exemplary Achievement, Massachusetts Association of Hispanic AttorneysShe is one of the 100 Most Influential People for the Hispanic Community of Massachusetts, El Planeta NewspaperShe won the 2010 - President’s Award, Women in Federal Law Enforcement Foundation;She won the Pioneering Women of Color Award, Massachusetts Women’s Bar Association.

I think its pretty obvious that this a case of racial hatred against her and against President Obama.

The anger at the prosecutor is silly. Plea-bargaining is literally haggling and those up-in-arms about the original "offer" need to take it up with their legislators and not with the prosecutors office. The odds of him ultimately getting hit with the maximum penalty was non-existent and a plea-deal was all but inevitable. The maximum penalty is also there for good reason for the times when white collar crimes do in fact hurt people tremendously. The fact that he not only broke the law but then opted to end his own life instead of face the consequences of his actions doesn't make him a hero and neither does the prosecutor performing standard plea-negotiating within the bounds of the law make her a villain. Prosecutors have a duty to do their "best" and their job is to prove the person guilty. It is, in turn, the defense's job to prove the opposite. This is the foundation of how our justice system works. The primary issue here seems to be that there is no perfect justice system and whether punishment fits the crime seldom has mathematical answers.

When the maximum is 100 times worse than the plea bargin, there is a problem. Accept our plea bargin or risk dying in prison.

In the United States there is a constitutional right to a trial. A chance to plead your case and be heard by people. But such heavy handed tactics and obscene charges make a mockery of the very system. Accept our plea bargin and presumed guilt, or we punish you for going to trial by hitting you with every single penalty and crime that we can.

When plugging in a laptop to an unlocked network drop can get you more years in prison than deliberate homicide, there is a problem.

I have a slight confusion about one piece of the story. I recall reading in some places that it was 50 years, other places say 35.

If he had been convicted on all charges, given the maximum sentence for each and ordered to serve every single one back-to-back, which is entirely unrealistic and would never happen, he would have been facing 95 years.

That is because it's standard practice for multiple counts for the same charge committed in the furtherance of the same crime to be served concurrently. If you're convicted on two counts of Wire Fraud (max 20 years each), and given the maximum sentence, you wouldn't be serving 40 years, you'd be serving 20 years. Make sense?

As far as the plea bargin, I have to wonder how it was offered. Did they push heavily for 50/35 years and then offer up 6 months as the attractive option they actually wanted to take?

They were never pushing for 35 years. In their press release announcing the indictment, they mentioned that 35 years was the maximum possible. They offered him a 6-8 month plea deal and told his lawyer that if it went to trial, they would be pushing for 7 years (iff he was convicted on all counts), which is what the Federal Sentencing Guidelines suggested.